tv [untitled] August 23, 2012 4:00pm-4:30pm PDT
commissioner studley: i appreciate that, but they were a package of charges. there was a charging document with a number of provisions that a mere thought supported suspension without pay. we have found one out of the half-dozen or so. we have already made it more complicated, in the sense of saying that instead of finding all six, if that is sustaining the charges, then we did not. we found that five or so, some of them quite serious, we did not even find fax 4, let alone official misconduct. -- we did not find facts for, let alone official misconduct. having done all this, i would
prefer to say something to the supervisors about the actions they might consider, rather than simply say we found one, and you, the supervisors, have only one choice. there was a big difference between what came to us and what is going forward for us. commissioner liu: are you saying we should specify the recommendation that charges be sustained as to certain counts only? commissioner studley: and what meaning we think that might have, and i have some thoughts. i will pass it forward. chairperson hur: i am just
trying in my mind to square it with the automatic removal if there is a finding of official misconduct. maybe you can claim what you have in mind. commissioner studley: give me a minute to think about it. one is that -- one strand is the automatic removal if the supervisors agreed with us. the first half to reach that, or fail to act within 30 days -- they first have to reach that, or fail to act within 30 days. but there were members of the public who said, and i found this -- it got me thinking in a variety of different ways when they said it is unfortunateq tht this has come this far.
commissioner hayon said something similar. you do not see more of this because people take action. the resolve things with their supervisor, or they resign, or somebody works out something to protect the interest that is at stake. wheat, i think correctly, did not think we had the ability to try to negotiate a solution, but the supervisors might feel that they could. i am torn here. i am balancing several different things. i do believe there was, under these terms, official misconduct. i think the domestic violence issues raised here were serious, and the responsibilities of the sheriff for domestic violence are important. at the same time, so is the decision of voters to choose somebody for an office.
they said, once we vote, we have only this very extreme measure, the recall provision, to allow us to go back and say we have new information since the election and want to do something different. they created another pathway for a different kind of reason to recall that they wanted to have in place. i am wondering whether it is worth reminding the supervisors, and maybe by just talking about it, we remind them, that they have alternatives. if we think that one charge is different from the whole set of charging provisions, here. i am trying to work this through. i am not positive. i do not have a fixed picture. commissioner hayon: we need to
send a written recommendation to the board. when i have their proceedings, my understanding is the ethics commission will have an opportunity to make a presentation, however short. perhaps that is the time to refer to some of these other issues. otherwise, i agree with mr. st. croix. i do not think we should complicate it further. i think we should make a simple recommendation. from what you have said, the charter, if they find -- if they all vote in agreement with their recommendation that the person is guilty, automatically, that person is removed from office, correct? >> if after reviewing the charter, the charges are sustained by not less than 3-4
of the board of supervisors, the officer shall be removed from duty. commissioner hayon: that seems pretty straightforward, unlike some other parts of the charter. chairperson hur: when commissioner renne raised this two-step inquiry idea, i like it in part because one of the difficulties here is that in some ways the sheriff was a guinea pig. if the charter provision was so difficult for us to parse, in some ways, it does seem -- it gives me some pause for him to be removed, based on a provision that we took quite a while and had a hard time
deciding exactly what it meant. but i kind of think you are right. i am not sure we have any leeway to do anything other than sustain or not sustain the charges. did you have any further thoughts on the matter? commissioner renne: we could address the question of whether or not we think that the mayor exercised his discretion in filing the charges and in proceeding in an unreasonable manner. t(as has been pointed out, it is
either the charge of official misconduct is sustained by us, on our recommendation, or it is not. commissioner studley: but if four of us are inclined to believe there was official misconduct, doesn't that and validate the mayor's action on at least that one provision, that there was a basis, that he had found the same result that four of us would also see there was an official misconduct element? i have always thought this was a going forward issue. once the mayor put it in our jurisdiction, in our lap, it did not matter what or why he did it, for this process, that we
should be looking at the merits , and looking forward at the consequences, and not questioning how it got here. iñilp thought commissioner hur t it in a very crisp way the last time he brought it up. for the completeness of those who are not burdened with 15 inches of documents, there are two elements. the commission transmits the record to the board of supervisors, with a recommendation as to whether the charges should be sustained. after reviewing the complete record, the charges are sustained by not less than 3/4 of the board of supervisors. if not acted upon within 30 days since the receipt of the record, the officer showed be
reinstated. the board has somewhat more complicated options before them. the have to either vote by 3/4 or better to sustain the charges, in which case, the officer is removed. but if they do not act at all for 30 days, the officer is reinstated. did i say that right? there is a real crossroads for the supervisors. chairperson hur: i am not sure there is much we can say. we should have a written opinion for the board. i am inclined to vote as to whether to sustain the charges.
in summary, one proposal could be that we draft a summary opinion, essentially, of the bases for the vote to sustain the charges. one option is for a member of the majority on the commission to draft thatlp. subsequently, we could either simply adopt it as a summary -- we have summarized the proceedings previously without having to vote on them and ratify them. if this document is more in the form of an opinion, we would probably want to come back, have
a look at it together in another special meeting, and then vote to adopt it. do my fellow commissioners have views as to which of these potential options for written summary or opinion would best suit the situation? commissioner renne: would it be sufficient to just transmits the transcript to our discussions and our determination, without anything else? chairperson hur: that could certainly be done. i think it makes the job of the board harder, because there is a lot more to read. anybody else? what do people think about the proposal? commissioner liu: that is what i was envisioning, but were you
envisioning, in terms of a written summary, how we came out on the findings of fact? chairperson hur: i think we would want to explain to the board exactly how we interpreted the statute. i think if they receive this transcript, it will be difficult for them to determine what the basis was. obviously, we are deliberating in public, which is highly unusual, if you are adjudicating the matter. i guess i worry that the new ones of the arguments that have been provided -- the nuance of the arguments that have been provided would be lost if we sent them a 500 page transcript, with 300 pages before-- pages
today. commissioner liu: the salian findings would be the specific findings of fact, how we came together on that, and what we decided on the two options? chairperson hur: i am envisioning something very summary. these are the facts we found support the charges. this is how we interpret the law. this is the application of the that is one possibility. another option would be one that has more detail, and would provide perhaps even -- i guess more detail as to the bases of the>> had to the parties have vs on this?
>> while we think about it for just a second, many people have talked about the passage of time and getting to the point where those supervisors can initiate their consideration, i change would be just for all concerned. i also want to think about how that relates to the presentation by the commission to the board that we will make. is that the opportunity to make some of this clear? it may not substitute for a riding, but it could complement its. do we have anyway of knowing whether the supervisors will want to inquire about the representative commissioner that takes the part or all of us at that point? >> is the risk of a representative or even the
entire commission, frankly, appearing in front of the board had having a substantive discussion about our findings? gosh i thought that was expected? >> maybe you can explain the board's expectations? >> of the board of supervisors had a meeting with discussed the procedure they intended to follow when the matter gets to them. it is my belief that they expect to have a presentation of up to 10 minutes from the ethics commission. and certainly have the sense from them that they were expecting to ask questions of the representative of the ethics commission. the difficulty i explained to them is if there is one commissioner there, for example, trying to explain the process and the reasoning that went into whatever recommendations to make, that person is in a difficult
position trying to put it in the minds of his or her fellow commissioners. it will be a bit of a delicate task, but the board is expecting presentation from the commission. >> the reason a written document may be helpful is that the rest of the representative her straying outside of what was actually decided is less if there is a written document. a representative could be talking more about the procedure that was followed hand could answer more procedural rather than substantive questions. mr. wagner? any thoughts on this? ñilp>> commissioners, i think in light of the problems thatdcu ty discussed in terms of the commission, speaking as a body,
i think the scope of the question that the board of supervisors is likely to be restricted to things like basic procedural matters. what procedures did you follow? i doubt there will be much of substance. on the other hand, this release supports making a simple recommendation here. the board is mandated to can view -- review the complete record. i think the commissioners have discussed the evidence in a way and the charges in a way that they are going to be viewing any way in trying to reproduce that in another document. it would require a lot of effort that may not be needed. in the interest of just moving this along, we can say let's not have a separate opinion. let's read the transcript of this hearing as the commission's discussion of the evidence.
>> i appreciate the consideration you are giving these issues. i want to make a couple brief points on this issue. the charter already says, and has been reviewed today, that there can be official misconduct that does not warrant removal. a felony claim that requires removal by the mayor also, for it to be permanent, it has to go before the ethics commission and they can determine whether or not the felony crime rises to the level that a warrant permanent removal or not. we of the charter contemplates the possibility of official misconduct that does not warrant permanent removal. >> how do you reconcile that with the provision that he read? >> this is how i reconcilable. the charter says, with all due
respect, that if you sustain the charges, claro, the removal has to happen. you have already determined that it appears that you're going to reject a least some if not most of the counts. if you are rejecting some of the accounts, by the clear language of the charter, you are not going to sustain all of the charges. therefore, if you're not going to sustain all the charges, then there can't the removal. by the clear language of the charter, it doesn't give the option to pick one charges and not another one. if you are not prepared to accept that very narrow reading, it seems to me that the commissioners point where you can make your recommendation as nuanced as you would like for it to be, you can recommend the
three charges be sustained in three be rejected. it does not warrant removal. or none of them more and removal. but yes, one of them may be official misconduct or wrongful conduct. in other words, i would submit that your recommendation can be as nuancedñilp has your discussn has been and you have spent several hours discussing what this provision means. as i argued earlier, that ambiguity should be read most favorable to the sheriff. and in that regard, i believe that giving the support of supervisors more options at not less is consistent with due
process, consistent with respecting the intent of the charter provisions and also with your discussion. reading the charter in the most narrow way the have to say yes of were down and yeses removal, that is not consistent with the rest of the charter provision that clearly says there can be official misconduct that does not warrant removal. >> what is your position on the written document? >> again, i was actually appearing before the board of supervisors a couple weeks ago notifying that they would be discussing their procedure that they already have the draft procedure in place, presumably, that was drafted. we got very short notice of and had three minutes to address during the public comment peroid. -- period.
we objected -- >> what is your position on whether we should recreate a written document summarizing our findings or whether we should transmit the record as his? obviously, we will do that, too. what is your view of we need a written summary? >> the more information that the board has to make a decision the better. so that a written summary is going to be more helpful to the board that have them pore through 15 pages or images of documents. knowing your rationale and having that very clearly stated in a written document, how the board would very much appreciated and we would respectfully request that as well.
>> commissioners? views on the written document? >> what you said it was sort of a draft for a pull of the board, her the commission. four of us seemed to agree that there was a violation of the official misconduct. going to the charging document, looking at it and wondering which one of the charges for which one of the charges are we so stating. -- are we sustaining? some of which included the
impeding witnesses and things of that nature that we think have found there was not sufficient evidence. it seems to me that we have to have, in fairness to the share of and in fairness to the board, some clear statement of the charge that we say we are sustaining. going through the charges, 1-6. there are a number of them, certainly towns to have a 3. we have said we did not think that there was sufficient evidence.
and the others, as i say, they are sort of mingling. many of the factual statements we have rejected. whereas i was suggesting that i believe that the conviction and the circumstances that led up to ahead is what is the official misconduct? >> is that count four? >> count one, domestic violence. count four, except for the fact that they incorporate 1-46, it
has a lot of statements about which we have said there was not sufficient foundation. >> when we sustain a count, we are just making a finding that each of the elements -- >> we are recommending the charges be sustained. the counts are the charges, are they? >> just because a complaint incorporates that reference, it doesn't mean that the decision on the charge has to incorporate every paragraph. uni are used to jury instructions that tell us exactly what the elements are. but you raise a good point. even in count one, i am not sure
that we found or we are inclined to find that he engaged in domestic violence. obviously we agree he committed an act of violence. i don't have in front of me the elements of domestic violence. there certainly are portions of this where even before that agree there is his conduct may not agree with every allegation in count one. so what are you suggesting? >> i guess what i am suggesting is that the written document if we prepare one should be a clear articulation of what the charges
were that we found supported the sustained the mayor's action in suspending. >> in your view, what is that? having heard what your fellow commissioners have said, what should the documents say? ñilpwhich of these were sustain? is there sufficient evidence to sustain? parts of what and for? >> yes. >> anything else?